Lead Agency Dispute

New York State Department of Environmental Conservation
Commissioner's Determination of Lead Agency
under Article 8 of the
Environmental Conservation Law

PROJECT: Sheridan/Avalanche Real Estate Company Development Towns of Ashland and Windham, Greene County

DISPUTING AGENCIES:

Windham Town Board

Windham Town Planning Board

Ashland Town Board

Greene County Highway Department

New York City Bureau of Water Supply

New York State Department of Health

New York State Department of Environmental Conservation

This decision to designate Region 4 of the New York State Department of Environmental Conservation (DEC) as the lead agency for the conduct of an environmental review under the State Environmental Quality Review (SEQR) process is made pursuant to Article 8 of the Environmental Conservation Law (ECL) and 6NYCRR Part 617, the statewide regulations governing SEQR. My reasons are that the potential impacts of the proposed action are of greater state and regional than local concern and that DEC has broad governmental powers for investigation of the potential impacts of the proposed development.

This lead agency dispute involves the proposed construction by the Sheridan/Avalanche Real Estate Company of 600 residential units, ski lifts and trails and other recreational facilities in the Town of Windham, on approximately 600 acres of land immediately east and west of the Ski Windham area, and the construction of an additional 200 residential units, ski trails and an 18-hole golf course on approximately 500 acres in the Town of Ashland, about 3,000 feet west of the westernmost Windham site. All three development areas lie within the Catskill Park on the north slope of Cave Mountain, south of the Batavia Kill, a tributary of Schoharie Creek. The eastern-most area abuts an approximately 200-acre detached parcel of State Forest Preserve. The Windham portion of the project is expected to accommodate up to 1,500 residents, nearly doubling the current population of the Town. Present plans call for this development to occur in six phases over approximately 20 years. About 270,000 gallons per day will be required from groundwater sources and 200,000 gallons per day of wastewater will be discharged, presumably to the Batavia Kill. The overall project may cause cumulative impacts with development in other Catskill "Mountain Top" and downstream communities.

The New York State Department of Environmental Conservation (DEC) jurisdictions include a State Pollutant Discharge Elimination System (SPDES) Permit, pursuant to Article 17 of the Environmental Conservation Law (ECL) , a Water Supply Permit and Protection of Waters Permit pursuant to Article 15 of the ECL, and potentially a Dam Safety Permit also pursuant to Article 15, should impounding structures exceeding exemption thresholds be needed for holding and/or retention ponds.

The Town of Windham Planning Board will have important land use decisions to make, including both site plan and subdivision plat approval for the portion of the development in its town. That portion consists of about 55% of the total project area. The Windham Town Board must approve special water and lighting districts, if called for. However, the Town has no zoning or comprehensive plan. The remaining 45% of the project area in the Town of Ashland is subject to no local land use or development control, although approvals of that town board may be needed for creation of special sewer, water or lighting district or town roads, if proposed.

The City of New York Department of Environmental Protection has authority under Article 1100 of the New York State Public Health Law to regulate sewage disposal systems in city drinking water supply watersheds -- in this case, Schoharie Reservoir and upper Schoharie Creek, including the Batavia Kill. In addition, Greene County Highway Department and New York State Health Department approvals may be needed, depending on the type of sewer and water facilities proposed and on the development's connections to the local highway system.

In a July 23, 1990 memorandum, William Adriance, an Associate Environmental Analyst in Region 4, requested me to designate Region 4 as lead agency for conduct of SEQR review for the Sheridan/Avalanche Real Estate Company development proposed in Windham and Ashland. His request was prompted as a result of a lead agency inquiry by Region 4 to which the Windham Town Planning Board responded that it opposed Region 4 assumption of lead and preferred to assume the lead review function itself. A discussion was held by the agencies on July 11, 1990, at which no agreement on lead could be reached.

In support of its position to undertake lead, Region 4 points to the intermunicipal nature of the overall project and to the water supply needs and wastewater discharges of the development which are likely to impact the Batavia Kill, downstream communities and the Schoharie Reservoir. The mountainside nature of the project is likely to create erosion and run-off problems into the Batavia Kill, a quality trout stream, and is likely to cause visual impacts. The project's overall size is likely to have significant cumulative impacts with other existing and proposed development in the Towns of Windham, Ashland and Jewitt. In addition, the growth-inducing effects will potentially be felt in the entire "Mountain Top" region of Greene County. Region 4 notes that its jurisdiction extends beyond the Town of Windham and that it has a familiarity with many of the potential regional and statewide concerns likely to be associated with so large a project.

In response to Region 4's position, the Town of Windham Planning Board Chairman, Arthur Davis, in a letter of August 9, recognizes many of the same issues such as sewage, water supply and runoff. The letter provides arguments why other potential impacts noted by Region 4, such as visual impacts, loss of agricultural land and change in community character, would be of significance to the Town as well as to the region or state. In addition, it notes the Town will also have to consider the impacts of adding 1,500 new residents with associated roads, parking and other infrastructure into the community. The Windham Planning Board cites its long-term familiarity with the overall area and availability of engineering and other consulting expertise as reasons for its ability to carry out an adequate environmental review. It notes that it "... would have additional financial support from the applicant to obtain any specialized consultation that may be necessary... ". Presumably, this financial support would come through the fees allowed in Part 617.17 for review of environmental impact statements (EISs).

The Bureau of Water Supply and Wastewater Collection of the New York City Department of Environmental Protection has expressed concerns regarding cumulative impacts with existing and proposed developments, including growth inducement on neighboring areas. The Bureau also has serious concerns about impacts to the Batavia Kill from anticipated wastewater treatment plant discharge and from erosion and sedimentation due to the new development. It expresses a preference for DEC to take SEQR lead role because it believes DEC to be best qualified to examine growth-inducing and water quality impacts. The Town of Ashland has expressed no preference for lead, nor has it noted any of its project concerns for consideration.

In resolving a dispute about lead agency, I am guided by the three criteria listed in order of importance in 6NYCRR Section 617.6(e)(5). The first of these criteria is whether the anticipated impacts are primarily of local, regional or statewide significance. As noted above, there is clear evidence of major regional and state interest in potential impacts, particularly relating to down- stream water quality and to the cumulative effects of widespread development in the Catskill "Mountain Top" communities. In addition, intermunicipal impacts related to the growth and density of the Towns of Windham and Ashland are at issue. While these impacts will be felt in the Town of Windham, these matters are all of more than local concern.

The second criterion for consideration in resolving a lead agency dispute is which agency has the broadest powers for investigation of the potential impacts. Density, timing, type, design and layout of development are primarily local land use issues but there is nothing in the form of local plans or zoning in Windham or Ashland to provide such guidance. Although the Windham Planning Board must consider appropriate conditions which should be applied to its subdivision plat and site plan approvals for this project, no such jurisdictions are present in the Town of Ashland. Lack of zoning in either town eliminates a major area of local jurisdiction which could be applied to such local land use decision making. On the other hand, DEC's approvals related to water quality and supply are of considerable importance to the creation of an environmentally sound development and transcend the Town of Windham's limited power to affect development policies for a portion of the overall project. The Windham Town Planning Board has a responsibility to express its concerns and to participate as an involved agency in the process, if it is not established as lead agency. Similarly, the agency established as lead has a major obligation to see that the concerns of the Town of Windham and other involved agencies, as well as its own, are seriously addressed in the SEQR process. In light of the substantive effects the proposed development may have both locally and regionally, the discussion of both the immediate and long- term impacts of all phases of the project through a public review in a generic EIS seems imperative.

The third criterion in resolving a lead agency dispute is which agency has the greatest capability to provide a thorough environmental assessment of the proposed action. While the Town may involve engineering and other expert consultants and call upon the expertise of the various involved and interested agencies, much of this input and analysis would duplicate that already available through the staff resources of DEC.

I therefore conclude, based on all the facts presented, that Region 4 of the New York State Department of Environmental Conservation best serves the role of lead agency for conduct of review under SEQR for the proposed Sheridan/Avalanche Real Estate Company Development because DEC has the broadest governmental powers for investigating the potential impacts of the development which, in addition to impacts upon the local environment, will have major state and regional impacts. DEC has sufficient expertise to conduct a thorough review on behalf of its own concerns and those of all other involved agencies. Presumably, this would include a scoping session with such agencies and the applicant prior to the preparation of a draft EIS.

This decision does not in any manner limit or minimize the responsibility of all other involved agencies to review this entire proposed action and to assist Region 4 of DEC in completion of the environmental review process. Each involved agency continues to retain all its underlying jurisdictions with respect to the project and must be satisfied its concerns have been adequately addressed before making decisions to approve or disapprove. Because this project is envisioned to take up to 20 years to complete, review done at this time under SEQR does not preclude further review if more detailed information on subsequent phases reveal unforseen potential significant impacts.